Last week I discussed the introduction of a new Act called the Civil Partnership and Certain Rights and Obligations of Cohabitants 2010. As a continuation, the Act also introduces significant changes in relation to the estate of a deceased cohabitant. Effectively the Act largely brings a cohabitant materially within the same remit as that of a husband or wife. What exactly does this mean for a cohabitant?

Well, if you satisfy the court as being a ‘qualified cohabitant’ which was defined in my article last week, then you may make an application for provision out of the estate of the deceased cohabitant. Remember, at the very least you must have been with your cohabitant and partner for 2 years where there are children of the relationship and five years otherwise.

Such an application will need to be made not later than 6 months from the grant of probate / administration. When the court is considering whether you, as a qualified cohabitant should have an Order made in your favour it will consider matters such as whether you are financially dependant, whether you are now married, whether a bequest was made by your partner and the other interests of any beneficiaries in the will. The total value of the provision for a cohabitant cannot exceed that which you would have received if you had been married to the deceased.

One thing that is very clear in the Act is that any Order relating to the share of a cohabitant out of the estate cannot affect the legal right share of a surviving spouse. Hence, if you were living with someone who has a living husband or wife, their share is protected.

As well as creating new rights for cohabitants this new Act contains a new parcel of rights for same sex couples who register as civil partners. The Civil Partner is now afforded a right to a share in the estate of their deceased civil partner provided the civil partnership has been registered.

The Act specifically states that where a deceased civil partner has made a will and leaves a civil partner and no children then the surviving civil partner shall have a right to claim one half of the estate. Where the deceased civil partner has made a will and leaves a civil partner and children then the surviving civil partner shall have a right to claim one third of the estate. However, where the deceased civil partner has not made a will and leaves  a civil partner and children then the surviving civil partner takes two thirds of the estate and where there are no children the surviving civil partner takes the whole estate. The surviving civil partner also has a right to seek to avail of hardship provisions.